Regarding Yasmin’s Music Copyright Law Piece in the Gilded Serpent.

I don’t have time to do Yasmin’s article justice; there’s just so much that the best I can hope for is to find someone else to pick up the baton where I leave it. What follows is a brain-dump with some hopefully helpful links and resources to help you dance your own path through copyright. Quick though this may be, I know it will never fit in the Gilded Serpent’s editorial limits (3 pages?) or letters (500 words) limits.

Be very, very, very careful with any free legal advice, especially from someone that is not a lawyer in the field they are discussing.

I’m not a lawyer, so THIS IS NOT LEGAL ADVICE. You are responsible for what you do with this information and commentary, not me. This is commentary and discussion prompted by a troublesome article published on the Internet. I’ve been working in and around copyright for a while, but that doesn’t make me an expert – it just makes me interested. I’m sure I’m going to make some mistakes in this rush-to-write, but the important thing is to get the questions out there, even if I don’t have the answers at the top of my head.

Yes. You do need to obey the copyright laws as they apply to your performances. You also need to obey the laws relevant to driving if you drive to your performances and the laws relevant to pedestrians if you walk from your car to the show. All told, there are thousands of laws you need to obey. But Yasmin wrote about copyright and fear, so let’s get to some of the misinformation.

The first thing you need to know is that copyright law is relevant to belly dancing. Just how relevant depends a lot on specifically what you do. It is a legitimate issue, but Yasmin did not present it fairly, completely or even accurately. Copyright is not something that can be addressed in 2000 words. Actually, maybe it can. You can address copyright in three words: Hire A Lawyer. I imagine that’s not a practical solution for many belly dancers, so let me see what I can do to bring up a bunch of uncomfortable questions.

The second thing you need to know is that copyright (importantly, that’s copyRIGHT, as in “the right to copy” not copyWRITE, as often seen) in the United States is Title 17 of the United States Code. Cornell University provides a very handy reference here.

Now, some specific issues with Yasmin’s piece.

On Permission

If you did not compose a piece of music, write the lyrics to it and pay for it to be recorded you can not play that music publicly without asking the people who did these things for their permission.

This is not correct. If you did not compose the piece of music, write the lyrics and pay for it to be recorded, then that means you are not the original copyright owner for the given piece of music. Often, some or all rights are assigned to a publisher or record company, in which case asking the original copyright owner for permission will be quite useless, even dangerous – If the publisher has acquired exclusive rights, you may be sued by the publisher for violating their copyright, even if you “got permission” from the original owner.

Public performance of music for which you are not the copyright owner is legal and (in many circumstances) encouraged, provided you play by the rules set forth in Title 17. Of course, one way to play by the rules is to get in touch with the [current] copyright owner, if that’s possible, and ask for permission. Because copyright exists at the moment of creation, there is no universal registry of who owns which rights to which works, so finding the right person to ask can be extremely expensive or even impossible. You can find out more about copyright investigation in the US Copyright Office’s Circular 22. Copyright investigation gets even more complicated when you consider the potential variations in spelling when translating non-English names to English (are those lyrics by Mohammed, Mohamed, Muhamed, Muhammed, Mohammad, Mohamad, Muhamed, or Muhammad.. or Mo?), and that music may be registered (if it’s registered at all) as part of an album or collection in a foreign country under a different title. Even if you find the appropriate copyright owner, you may need a translator to negotiate.

Copyright law also provides several circumstances under which you can publicly perform music for which you do not own the copyrights. These exceptions include:

1) You work in a nation which includes “compulsory” and/or “blanket” licenses, which cover your specific use of the copyright-protected material. For belly dance performers, the most common right you need (and one discussed by Yasmin) is the public performance right. One way to acquire such a right is to perform in a venue that is licensed by one or more Performing Rights Organizations (more on those in a bit). If the venue has the appropriate license, you don’t have to ask for permission, and you are allowed to play the music where the public can hear it.
2) You use music that has specific rights waived or specific licensing terms applied. Some musicians actually encourage the use of their music. One way a copyright owner might do this is to apply a specific license (such as Creative Commons license – http://creativecommons.org/ ) to the music in question, which specifies how the material may be used. If you comply with the terms specified by the copyright owner, then you (everyone, really) already have permission and don’t need to ask.
3) In the United States, the performance is non-commercial/charitable/educational and complies with the additional restrictions described in 17 USC 110(1) and 17 USC 110(4). The additional restrictions include prohibition on cover charges.
4) In the United States, the performance is limited to a religious organization during a worship service (17 USC 110(3)).
5) In the United States, the performance is in a retail establishment where the primary purpose of playing the music is to sell it (17 USC 110(7)).
6) In the United States, the performance is done under the auspices of a government agency or office (17 USC 110(6)) or a veteran’s or fraternal organization (17 USC 110(11)), subject to additional conditions.
7) What you are doing is Fair Use. This would include criticism, comment (which could include parody or satire), news reporting, teaching, scholarship or research. Fair Use is a big, nebulous and very strange world of copyright law, codified in (17 USC 107) but that is a subject unto itself. Fair Use would rarely come up in the context of a typical belly dance performance, but you probably should know about it anyway.

There are other exceptions, like for jukeboxes and cable broadcasters, but they are even less relevant to belly dancing as I know it.

Also of note, you may not have to actually pay for your music to be recorded to be the copyright owner. It is possible to have legitimate work-for-hire done (and thus to be a copyright owner) without monetary compensation.

On Mechanical Rights

For 2006 and later, the mechanical rate is the greater of 9.1¢ per song or 1.75¢ per minute for each copy of a record or tape made and distributed (this includes DVDs). A DVD producer may be able to arrange different terms and conditions with an independent artist, particularly if publicity for the music is involved. But a written contract still must be signed that grants permission.

Yasmin fails to explain that these rates are set by statute (hence “statutory rates”) 17 USC 115, which defines a “Compulsory license for making and distributing phonorecords.” The nature of a compulsory license is that you do not need permission as long as you comply with the rules specified in the law. These rates apply to “phonorecords” which means audio recordings (but not necessarily audio-visual recordings). You can, of course, negotiate a different rate with the appropriate copyright owner(s), for which a written contract is an excellent idea. So, more properly, with regard to mechanical rights for phonorecords, you need to pay the statutory rate, or get permission (probably in writing), but not both.

Few dancers are doing anything that is subject to mechanical rights, which would involve “making” or “distributing” audio recordings (and those that are should probably have lawyers to deal with this stuff). Dancers producing or selling DVDs should probably be more concerned with synchronization rights, which apply any time music is accompanied by a visual image (such as an image of a dancer) and which, to my knowledge, do not have any compulsory license in the United States. While you’re negotiating your synchronization rights, you can bring up the associated mechanical rights as well. If you’re lucky, the same entity will be able to negotiate both.

On the Berne Convention

In the United States and all the countries that signed the Berne Convention (1886 and 1971), intellectual property is protected by copyright laws that must be respected if you want to copy and/or perform to someone else’ work.

Countries don’t have to be party to the Berne Convention to have copyright laws that must be obeyed (not just “respected”).

The Berne convention was revised in 1908, 1928, 1948, 1967 and 1971, and most recently amended in 1979. The United States is also party, under the provisions of the Digital Millenium Copyright Act 1998 (or DMCA), to the World Intellectual Property Organization (WIPO) Copyright Treaty (1996) (or WCT) and the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty (1996) (or WPPT).

If you’re feeling particularly nervous after reading Yasmin’s article, you might also want to look into the Agreement on Trade Related Aspects of Intellectual Property Rights (1994), which applies to World Trade Organization parties, including Egypt (member since 1995) and the United States (member since 1995) and the Rome Convention (1961), which applies in neither Egypt or the United States, but does apply in 86 other countries. Oddly enough, there is a lot of world out there that isn’t either Egypt or the United States.

On “a lot of rights to worry about”

But wait! There’s more! Translation, recitation and broadcast rights are discussed in the Berne convention. Reproduction, distribution, rental, making available rights (including broadcast) are discussed in WPPT and distribution, rental and communication to the public rights (which includes broadcast) are discussed in WCT.

Given the large secondary market in the bellysphere, it’s also worth noting that there is a “first-sale doctrine” that usually applies with regard to distribution (or, more precisely, I suppose, re-distribution).

When you’re done reading (and paying a lawyer to translate) all of the various laws and treaties, then you might have some time left to dance (or you might not).

On Performing Rights Societies

Yasmin goes on to mention Performing Rights Societies, which are more commonly (as far as I know) known as Performing Rights Organizations, some of which are societies, some are corporations, and I think some might even be government bodies (depending on the country involved).

Performing Rights Organizations (PRO) generally deal with performing rights (as one might assume from the descriptive name), though some also handle mechanical or other rights, and some even take it upon themselves to promote and produce music. Of course, a PRO does charge fees, and does collect royalties and in some cases, they eventually pay the artists they represent. If you are a “major recording artist” then a PRO is a great thing. Which organizations are relevant depends on the country or countries that the copyright owner(s) are in and where the performance occurs. Many have reciprocal terms with each other, some do not. Here’s an incomplete laundry list of Performing Rights Organizations, which may or may not be relevant to your particular performance (I hope you can handle this alphabet soup):

The only reason a dancer would not have to contact the copyright owner of her music is if it falls in the public domain.

This is not correct. Yasmin provides handy references regarding the duration of copyright, but an expired copyright is not the only way a copyright-protected work may enter the public domain. Nor is the public domain the only circumstance under which someone can use material that is (or was) protected by copyright without contacting the copyright owner.

A copyright owner may specifically dedicate the work to the public domain. Works of the US Federal Government (and some other governments and quasi-public organizations) are not subject to copyright. And, of course, specific rights may be waived or have specific terms associated with them for a given work (e.g., “free for non-commercial use”). Don’t forget any compulsory licensing that may apply, or any of the exceptions discussed previously.

On Egyptian Copyright Law

I don’t speak or read Arabic, but I did find some interesting tidbits about copyright law in Egypt. Egypt is a member of the Berne convention [pdf] (effective June 7, 1977 ). Copyright protection under the Berne convention is at least for the life of the author plus 50 years ( see http://www.wipo.int/treaties/en/ip/berne/summary_berne.html ). The 1954 copyright law in Egypt was amended at least in 1994. Copyright in Egypt is managed by the Ministry of Culture, Supreme Council of Culture, Permanent Office for the Protection of Copyright, 1 El Gabalaia Street Opera House, El Gezira, Cairo, (20 2) 735 2396 / 403 3023.

Egypt is not a member of the WIPO Copyright Treaty.

In 2000, a conference was held in Cairo to discuss copyright issues in Egypt. I don’t know what went on, but such a conference is significant. Someone should spend some time on that if they care about Egyptian copyright issues.

On Respecting Nations and Their Laws

The translation I found states that in 1952 Nasser passed a clear copyright law that established protection for all intellectual property until 50 years after the death of the author. Fifty, not seventy as in the rest of the world, but a law does exist on their books.

It is true that some countries offer copyright protection for the life of the creator plus 70 (or even more) years, but those countries (which include the United States) do not constitute the “rest of the world” with respect to Egypt. Before one disparages a nation based on its alleged non-conformity with global copyright standards, one should carefully consider how non-conformist it truly is. The WPPT and WCT (by which Egypt is not bound) specify a term of protection of at least life+50 years. Most of the world is comfortable with life+50 terms for copyright.

Copyright has changed a lot since 1952 (what with the whole digital media thing), and I’m sure that’s true in Egypt, too. Like the rest of the world, Egypt has digital communications technologies.

On the Threat of Legal Action

The answer is because Western distributors of these products, if they have legally acquired the rights, can enforce those rights using Western laws and judicial systems. Being sued in a court of law can cost thousands in legal fees alone, not to mention the fine for damages if the offense is ongoing, lucrative and widely publicized.

That’s scary stuff.

Serpentine is a “Western distributor” and, despite Yasmin’s apparently (based only on her Gilded Serpent article) incomplete understanding of the rights involved, surely believes they have “legally acquired the rights.” The way I read that statement, to use music for which Serpentine owns or claims to own the copyright, you, as a dancer, have four basic options:
a) Hire lawyers and, if necessary, investigators and researchers at significant expense to ensure that you are fully compliant with all the nuances of copyright law, and that Serpentine actually has all the relevant rights;
b) Assume that Serpentine has the appropriate rights and ask Serpentine for permission before you do anything;
c) Ignore this threat and wait to be summoned to court; or
d) Avoid using Serpentine materials altogether.

The cheapest, simplest and safest approach is, unfortunately, D. It costs nothing to avoid this sort of problem. There is lots of other music in the world.

On a Dancer’s Responsibility

It’s not, I think, the dancer’s responsibility to know who owns the rights to a given piece of music. Given the nature of international trade, the opportunity to transfer rights, and the complexities of international law and reconciliation, it is unreasonable to expect that a dancer can identify all the relevant rights owners for a given recording. That’s why performance rights organizations exist – to associate a recording with the various (and current) rights-owners.

It is, I think, a dancer’s responsibility to comply with the licensing and reporting requirements of the venues in which s/he performs.

It is also a dancer’s responsibility to make sure that you purchase your music from a reputable retail operation, and that it is not likely to be pirated. I recommend purchasing from the musicians directly whenever possible (more on that next).

On Thinking of the Musicians

Think of the musicians and their families. If the musicians and their producers can’t make a living from their creativity, how can they continue to publish more?

If you’re really thinking of the musicians, and you want them to continue to create, you have to get a lot closer and more direct with your support. Collecting performing rights fees and enforcing copyright laws is a very ineffective way to feed and nurture musicians.

The challenge for musicians with regard to performance rights is that they have to be big enough for the PROs to realize they exist before they can benefit from them. Then they have to wait for their money, and they have to share it with all the middlemen. Indulge me while I do some hypothetical math for you.

Licensing from a PRO for an “enhanced musical performance” (that is, music with dancing) for a typical restaurant in the United States might cost $750 per year. Assuming they play music 12 hours a day (background music plus dancing music), 360 days per year and a typical song is 4 minutes, that results in about 64,800 song-plays per year. The PRO deducts their administrative overhead (let’s say 15%) and the remaining $640 is divided among the copyright owners for each song. That works out to about .99 cents per song. If a musician is relying on revenue from performing rights on music used by dancers, and they are earning a penny per song, that means a dancer would have to dance twice a night, every night to one song from this musician for almost two years just to cover the cost of a set of oud strings.

In an ideal world, the copyright owners get paid about a penny every time you dance to one of their songs. That penny gets further divided among the lyrics copyright owner(s), the composition copyright owner(s), the recording copyright owner(s) – and there might be lawyers and agents and other people in line with their hands out.

This isn’t an ideal world, and often enough, small independent copyright owners never get paid by a PRO. This happens because their collected fees never accumulate enough to justify the expense of all this accounting and analysis or the methods used by the PROs simply don’t pick up the relatively few plays for the songs in question. It is technically and practically impossible to monitor every song played everywhere, track the associated rights-owners, and collect all the appropriate fees (minus those performances with statutory exemptions, of course), and distribute the resulting pool of money precisely to the millions of rights-owners involved. The “small” copyright owners essentially vanish into a footnote on a PRO financial statement.

If you want to feed a musician, buy [legitimate!] copies of their recordings and merchandise. Buy them as directly as possible, preferably right from the hand of the musicians themselves (eliminate as many middlemen as possible and let the musicians keep as much money as possible). Encourage others to do the same. Talk to your musicians (if you can), and make sure they know you appreciate (and pay for) what they do. It takes more than fractions of a penny on a remote accounting ledger to keep someone creative and productive. Sometimes it takes a new set of strings.

I wish Yasmin was thinking of the musicians with whom she works when she decided to put the fear of economic ruin into any dancer that would dare to do something with their music “without permission” – even if they are perfectly within their rights to do so.

On Ethics

We as artists have a duty to respect the other artists we work with.

As mentioned in the Gilded Serpent letters, such a duty would suggest credit should be given to Jean-Léon Gérôme for the inclusion of a detail from “Almeh Performing the Sword Dance” ~1870, and possibly also the Herbert F. Johnson Museum of Art at Cornell University.

Such respect would also, ideally, extend to other dancers as well.

On the Bibliography

I would suggest that Yasmin update her sources. 1996 and 1998 books can not discuss the implications of several laws, court decisions, conventions and treaties that have come into force or have been amended since their publication. The Napster decision, in particular, didn’t happen until 2001.